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Friday, 21 October 2011

Today, the verdict was announced in a very controversial case in my country regarding a neonatal intensive care doctor, who has been charged with murdering a newborn baby by administrating high doses of sedatives (here, here, here, here, here, here, here, here). The doctor is acquitted of the charges of manslaughter. It remains to be seen if the prosecutor decides to take the case further to appellate court.

The case has sparked heated discussions and not so little confusion in the medical, political and ethics expert community. Leading voices of medicine have somewhat lost their marbles and made megalomaniac claims about doctors being immune from prosecution whatever they do to their patients in the name of best practice. There has also been rather peculiar criticism about the prosecutor taking a long time bringing the case to court, where the unspoken message seems to be that medical doctors should somehow be treated differently than other people in criminal proceedings - reminding a bit about how Julian Assange or Mr. Strauss-Kahn have been reasoning around their own persons in relation to the rape charges they are or have been facing.

All of this has, to my mind, been sheer nonsense. Of course, it is immensely burdensome for anyone to face serious criminal charges. Even more so if your own view is that you have made nothing wrong, but rather the best you can. It is also completely understandable and justifiable that the legal defense and friends of those charged do their best to have the person charged described as innocent in media. However, the principle of equality before the law stands far above any such individual consideration. Take a deep breath and think about for a moment how society would look like if we let that principle slide and this should be crystal clear to anyone.

Now, there have been several attempts to make a spin on the case settled today according to which it is not about a real legal issue, but rather about a more hazy underlying problem of an ethical nature. The idea has been that the critical issue is whether doctors are allowed to take risks in order to achieve effective pain reduction in dying patients. However, albeit indeed being an interesting issue in its own right, that has never been the centre of discussion in the present case. Doctors are allowed to take such risks according to Swedish law, end of story. But they are not allowed to murder people as this is defined in criminal law. It is the latter that has been the base for the prosecutor's claim in the case decided today.

Instead of making my own explanations of how I read the court's decision, I have made a quick translation of the court's own press summary. The Swedish original is here. Read for yourself and make up your mind!

Solna District Court today acquitted the doctor who was prosecuted for manslaughter or attempted manslaughter of an infant at Astrid Lindgren's hospital in Solna fall of 2008. The district court has not found it proven that a crime has been committed. The district court has not found it proven that the doctor has done something that was not be medically justified.The district court has not found the evidence sufficient for showing beyond reasonable doubt that a crime has been committed. The prosecutor's claim is based on an analysis of forensic evidence, which has demonstrated an exceptionally high concentration of thiopental in the blood from the deceased child. The district court has not considered this result to be sufficiently reliable to fully serve as the basis of a conviction. The district court does not believe that one can draw any more far-reaching conclusion of the analysis results than the one that thiopental, although observed in a high concentration, it is unclear how high the concentration was. Given this uncertainty about how high the concentration was, it is conceivable that the occurrence can be explained by the fact that the child had received thiopental on previous occasions during hospitalisation. This means that there is no evidence that a crime has been committed and the doctor is already on this ground freed of the charges made.The district court has not considered that the prosecutor with sufficient certainty has proven that the doctor has acted in any way that was not medically justified when the child died.In the debate related to this case, it has been claimed that the case concerns the distinction between what a doctor can and cannot do when it comes to relieving pain and anxiety in end of life care. This is not correct. The prosecutor's contention is rather that the child has been poisoned, that the child has been receiving a very high lethal dose of thiopental administered in order to effect that the child would die, not in order to relieve pain or distress. There is no doubt that such conduct, if it had occurred, is punishable as manslaughter under Swedish law, whether or not it had been prompted by reasons of compassion and whether or not the child would have died anyway within a very short time. As has just been said, however, the district court did not consider it proven that such a criminal act had in fact taken place.

9 comments:

The distinction between high-does analgesia and murder is an important one, and you are right as far as that goes. But, judging only on the basis of the above press release, this case does not appear to be reassuring.

The press release states that charges were dropped because it could not be proven that the medication was given "in order to effect that the child would die" - in other words, with regard to the intention behind the dosage. But the only evidence on which this conclusion was based was an estimate of the amount of medication given (and the difficulty of determining that accurately). In other words, the court apparently believed that, if it had been known that the dosage was beyond a certain value, that would have been taken as evidence of murderous intent.

So apparently it is the legal equivalent of murder to give high dosages of sedative medication, although it is nowhere specified what the critical limit is, and apparently in absence of any evidence of what the doctor's actual (i.e., deliberate and conscious) intent was. How can that not have a chilling effect on aggressive pain control?

your analysis is partly correct, but you disregard another part of the argument of the court having to do with the presence of alternative hypotheses and the reliability of the forensic medical evidence. It is not the amount found by the forensic medical investigation by itself that decides the issue, but (a) this amount, (b) the certainty with which this amount has been measured and (c) what may plausibly explain the presence of this amount that in combination has decided the case. In the present case, the court assessed on the basis of hearing a number of experts that there was some uncertainty in the forensic medical measurement and, even more important, that even if this measurement is taken as given, there are alternative explanations to the presence of the measured amount besides the doctor having administered a lethal dose on any occasion.

As to intent, since no court can restrospectively look inside the head of the accused, it is always evidence of this sort + testimony of people present, documentation, and so on that the court has to go on when making a ruling.

So, I would say, your conclusion is not valid. It does not follow from the ruling and the arguments that it is based on that there is a level of sedatives such that if that level is ascertained in a postmortem or as having been administered, then it is a case of murder (one or two).

I have few questions:- do the medical records of this baby contain the recorded administered drugs and their doses? - were these medical records available to the forensic team?- if yes: why are they not mentioned? If not: where did the medical records disappeared?- did the experts agree about the necessity of the administrated combination to this baby?- is this a current combination of drugs administered to babies?

The medical records were, of course, part of the evidence. The administration dosage recorded (and claimed by the accused doctor) was well within the confines of established practice. What awoke suspicion was the amount of drug residue found in the body of the baby after it had died. The prosecutor's claim, in effect, was that the doctor had not adequately recorded the administered dosage. This claim, the court decided not to have been sufficiently substantiated by evidence (since there were other explanations available that the one of the doctor having deliberately poisoned the baby).

Then would have been an idea to check how often did this doctor administer the combination and with which results? How many of his very young and ill patients died? And why? What are demonstrating the statistics of dying babies in that service and even in that hospital? Are there other parents who's children died in that hospital recognizing some familiar pattern in this case?In order to administrate a doses while recording another one a doctor needs the implicit approval of his colleagues. And maybe the nurse which administered a different doses would not dear to make any declaration. All who would declare something else then it has been recorded could be accused of calumny. In my humble opinion this case should not be let by this decision. Other way you will be heading towards a Groningen protocol and I think this is not what Sweden needs.

As you may imagine, exactly those issues regarding this particular case where at the center of the court proceedings, as well as the grand jury hearing preceding it and the prosecutor and defense investigations. There was no past pattern of the sort you mention and medical records had been handled in the way prescribed.

However, I see no connection to this being a step towards a Groningen protocol (i.e. principles of accepted neonatal euthanasia). What has transpired is rather that a perfectly defensible course of palliation in end of life care of neonates may leave drug residue in a corpse suggesting that euthanasia has been performed. This rather actualises a need to follow up other cases, so that prosecutors and courts need not be tied up by these kinds of cases in the future, and innocent doctors need not face grave accusations.

There is always a first step. And in the Netherlands the officially registered euthanasia cases are just the top of the iceberg of "terminated" patients just because they are asking it or because their family is it asking it or even if the first 2 cases do not occur. YES, without telling the old or ill nothing more than: "We will help you!" Logically the medical record will not register this reality, but the statistics will suggest it. Today 9 in 10 doctors in the Netherlands are ready to "palliate" the ill and less ill with "euthanasia". Plus in Belgium euthanasia now is offered under the name of "palliation". Are these also "innocent" doctors? They could be "innocent" if someone starts to relativate everything!

Well, you mention the two countries in Europe where euthanasia is actually legal. These, of course, need criteria for deciding when to do it and when not to. But this is not my country.

The rest of what you say about those other two countries is, as far as I can tell, your own conjectures that you bring forth without any evidence. Perhaps you confuse the simple fact that old or terminally ill people sometimes decline continued life-support, or food and water, but request sedation or pain killer medication until they die and have their wishes granted. This does happen in my country, and it is perfectly legal, but I can actually not see anything problematic with that.

As for steps. The fact that there were criminal charges when cause for suspicion arose, prosecution and an actual trial is actually more of a sign that, in my country, the line against euthanasia is firm.